HJK REALTY LLC v. VIRGINIA KAKRIDAS, as trustee of the DELTA REALTY TRUST, and JOHN KAKRIDAS

MISC 251658

September 18, 2008

SUFFOLK, ss.

Long, J.

DECISION

Introduction

This case is a dispute between the plaintiff, HJK Realty LLC (HJK), and the defendants, Virginia Kakridas, Trustee of the Delta Realty Trust, and John Kakridas (collectively Kakridas), over a strip of land within the defendants record property but to which the plaintiff claims title by adverse possession. The area in question (the disputed area) is bounded by a fence and used by HJK as part of its parking lot.

The case was tried before me, jury-waived. Based upon the parties stipulation of facts, the affidavits of numerous witnesses which the parties agreed would be admissible at trial for all purposes, [Note 1] the agreed exhibits, the testimony and additional exhibits admitted into evidence at trial, and my assessment of the credibility, weight and inferences to be drawn from that evidence, I find and rule that each of the requisite elements has been established, and the plaintiff has acquired title to the disputed area by adverse possession, free and clear of any claim by the defendants.

Facts

HJK is the current owner of the property at 100-110 Hano Street in Allston (the Hano parcel), which contains a two-story commercial building and an associated parking lot. [Note 2] The Hano parcel was owned by the Trustees of the Greater Boston Carpenters Building Trust from May 18, 1966, to April 12, 1984. During that time, it was used by various union locals and was the site for numerous union meetings. The witnesses associated with the unions who testified about events during this time period were Henry Welsh, Neil Sullivan, Jerome MacDonald, Eva Shea, and Michael Molinari. All worked and/or attended meetings at the site. The Carpenters Trust sold the parcel to Elie Jamal, who owned it from April 12, 1984 until December 11, 1984. The carpenters continued as tenants of the Hano parcel even after it was sold, using it for offices and meetings at least as late as 1996. Thus, one or more of the carpenter-associated witnesses have personal knowledge (and taken together, continuous knowledge) of events from 1966 through 1996. Mr. Jamal sold the Hano parcel to the Whitney Corporation, which owned it from December 11, 1984, until December 28, 1984. The Hano Trust (David and Melody Dorfman trustees) held title from December 28, 1984 to January 14, 2004, when the property was conveyed to HJK, an entity also owned and controlled by the Dorfmans.

The defendants are the current owners of the abutting property at 12 Emery Road, which they acquired on April 17, 1998 (Emery parcel). [Note 3] Prior to that time, the Emery parcel was owned by National Empire Real Estate (June 1967-June 1981) and the Boston Food Cooperative, Inc. (June 1981 until the sale to the defendants in April 1988). The Boston Food Cooperative had its business across the street at 449 Cambridge Street, and used the then-vacant Emery parcel as a parking lot.

The disputed area is located at the rear of the Hano parcel. It is approximately two-hundred square feet in size, located within the record boundaries of the Emery parcel, but separated from the rest of that parcel by a chain link fence. [Note 4] The fence has been in that location since at least 1966 (the date when the first of the witnesses was at the property) and likely since the 1940s. [Note 5] The plaintiff, the plaintiffs predecessors in title, and their tenants, all treated the fence as the boundary between the Hano parcel and the Emery parcel, and used the disputed area (all of which is on the Hano parcels side of the fence) as their own, for parking. It is paved and striped for parking spaces. It is undisputed that the Dorfmans never asked or received permission from anyone to park in the area, pave the area, or maintain the fence, all of which they have done.

The disputed area has been enclosed by the chain link fence and used by the owners and tenants of the Hano parcel as part of the parcels parking lot, for as long as the witnesses could remember (i.e., at least as far back as 1966). The parking area is paved, and the paving extends to the fence. Throughout their ownership, the Dorfmans maintained the parking lot (including the entirety of the disputed area), including repaving, re-striping, and arranging for snow removal. For as long as the witnesses could remember (i.e., at least as far back as 1966), previous owners of the Hano parcel had done the same.

The parking lot was used extensively, but only by the occupants of the Hano parcel. Signs were posted in the Hano parking area, facing the parking lot and facing Hano Street, stating that parking was limited to Hano parcel tenants and their guests, and that violators would be towed. The parking restriction was enforced. When the Dorfmans purchased the Hano parcel, the signs were already in place. Since the Dorfmans purchase, they and their management companies have continued to enforce the policy and advised the owners of unauthorized vehicles that they would be towed. The Emery parcel has no entrance to the Hano parcel parking lot, and the fence completely blocks such access.

In October of 1998, the defendants began to remove the fence. Although the defendants stated that they intended to install a new fence at the correct property line, Mr. Dorfman advised them that even if the fence was not on the property line, it had not been moved for thirty to forty years. Mr. Dorfman asserted that he had acquired the disputed area by adverse possession and pled this action. A preliminary injunction was issued directing the restoration of the fence pending final resolution of this case.

Adverse possession requires open and notorious, actual, exclusive, adverse and continuous use of the claimed area for more than twenty years. Ryan v. Stavros, 348 Mass. 251 (1964). [Note 6] At trial, the defendants did not seriously contest the plaintiffs and its predecessors continuous, uninterrupted use of the disputed area, or the particulars of that use (the existence of the fence and the continuous use of the area on the Hano parcel side of the fence for parking) for at least that period of time. Rather, the trial focused on whether the plaintiff and its predecessors had received permission to use the disputed area. Based on my evaluation of the evidence in its entirety, I find and rule that permission was never sought nor granted, and, to the contrary, all of the acts in question were adverse. The carpenters neither sought nor were aware of any permission. There was no evidence that the subsequent owners (Mr. Jamal and the Whitney Corporation) ever sought or obtained permission and their tenants (the carpenters) were aware of none. The Dorfmans neither sought nor obtained permission, nor believed they needed permission. Donald Lubin, who was a director and officer of the Boston Food Cooperative between 1975 and 1998, testified that because the Boston Food Cooperative always needed more parking for its customers, any claim that the Food Coop may have had to the disputed area and any permission it would have given to anyone else would have been raised at a board meeting. He testified that it was never raised, and he was not aware that permission had even been sought or granted. I conclude that it was not.

Elements of Adverse Possession

Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. Totman v. Malloy, 431 Mass. 143 , 145 (2000); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); see also G.L. c. 260, § 21. The requirements are strictly construed and must be proven by the party asserting title by adverse possession. See Sea Pines Condominium III Assn v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004) (hereinafter Sea Pines). In the absence of clear proof, the true owner will not be barred of his right to the property. Cook v. Babcock, 65 Mass. 206 , 210 (1853).

The test for adverse possession is the degree and nature of control exercised over a disputed area, the character of the land, and the purposes for which the land is adapted. Ryan, 348 Mass. at 262. The acts must be sufficiently open and notorious to place the rightful owner on constructive notice that a claim of right was being asserted. Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). Thus, the claimant must act in a manner inconsistent with the true owners rights. Lawrence v. Town of Concord, 439 Mass. at 421; see also Sea Pines, 61 Mass. App. Ct. at 847. The open and notorious requirement is designed to allow the true owner to take legal action and cut of the adverse possessors claim before the statutory period is completed. Lawrence, 439 Mass. at 421 (quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959)); see also Sea Pines, 61 Mass. App. Ct. at 848. A landowner can interrupt the statutory period by openly reentering the land in such a manner so as to give notice of the interruption. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 541-42 (1996).

The claimant must use and enjoy the property continuously for the required period as the average owner would use it, without the consent of the true owners and therefore in actual hostility to him irrespective of the possessors actual state of mind or intent. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992); see also Shaw v. Solari, 8 Mass. App. Ct. 151 , 156-57 (1979). Adverse possessors in privity of estate with the claimant may be tacked on to fulfill the required twenty year period. See Lawrence, 439 Mass. at 421; Luce v. Parsons, 192 Mass. 8 (1906); G.L. c. 260, § 22. The true owners knowledge or lack of knowledge of his interest is not an element or a defense to a claim of adverse possession. Lawrence, 439 Mass. at 422.

Analysis

The plaintiff has proven each of the required elements of adverse possession. The plaintiff and its predecessors had actual possession of the disputed area for more than twenty years because they used that area as a paved parking area for their building and its tenants. The disputed area had painted lines demarcating parking spaces, which extended to the chain link fence. Additionally, the plaintiff and its predecessors controlled the area because they paved the parcel, maintained the fence, and cleared the trees that interfered with the fence.

This use continued for more than the required 20 years. Although the Hano parcel has changed owners during that time, the predecessors in interest, who also used the parcel the same way, can be tacked on to satisfy the 20 year period. See Lawrence, 439 Mass. at 421; Luce v. Parsons, 192 Mass. 8 ; G.L. c. 260, § 22.

The plaintiffs and its predecessors use was sufficiently open and notorious to put the defendants on notice of their claim. First, they used the disputed area as a paved parking lot for cars entering and exiting to do business in the building on the Hano parcel. Second, they placed signs warning that unauthorized vehicles would be towed. Third, the chain link fence clearly delineated the area being claimed.

The exclusive use requirement is satisfied by the presence of the chain link fence, the paved parking lot, the painted lines for parking spaces, the use of the area for parking, and the signs prohibiting unauthorized parking. George Severence, an expert, placed the age of the chain link fence at approximately the Second World War. The evidence is overwhelming that the owners of the Hano parcel have been using the disputed area to the exclusion of the owners of the Emery parcel since at least 1966.

The remaining element is the issue of permission. Based on the entirety of the evidence, it is clear that permission was never sought or obtained, or ever believed necessary.

The fact that the defendants paid the property tax bills for the Emery parcel, which included sufficient square footage to include the disputed area, does not change this result. Here, there is no indication that the plaintiff, the defendants, or their predecessors were aware of the exact boundaries of the parcels on which they were paying property taxes. Furthermore, even if the defendants knew the true record boundaries of the Emery parcel, it is evidence that they were on notice of an adverse claim of title by the plaintiff. In this case, the payment of the respective property taxes for both parties along the record boundary of the parcels does not affect the outcome of the adverse possession claim.

Conclusion

For the foregoing reasons, the plaintiff has established title by adverse possession to the disputed area, which reaches to and includes the chain link fence. Within forty-five days, the plaintiff shall submit a plan or survey that indicates the precise location the boundaries described in this Decision. Once finalized, it shall be incorporated into the final judgment in this case, which shall be entered at that time.

SO ORDERED.

Keith C. Long, Justice

Dated: 18 September 2008

FOOTNOTES

[Note 1] These were the affidavits of David Dorfman (now deceased) (including his supplemental affidavit), Neil Sullivan, Henry Welsh, Eva Shea, Michael Molinari, Jerome MacDonald, Steven Gold, George Severance, and Donald Lubin. Mr. Molinari and Mr. Lubin also gave live testimony at the trial.

[Note 2] The Hano parcel consists of two separate lots. Lot 1, at 100 Hano Street, is registered land, reflected in Certificate of Title 97685. The deed for Lot 2, at 110 Hano Street, is recorded at the Suffolk County Registry of Deeds, Book 11329, Page 235. The building is on both Lots, with the majority on Lot 1. The portion of Lot 2 that is not occupied by the building is a paved parking area. The parking lot also includes the disputed area.

[Note 3] Their deed is recorded at the Suffolk County Registry of Deeds in Book 22365, Page 270.

[Note 4] At all relevant times, the disputed area was included in the property covered by the tax bill sent by the Board of Assessors to the owners of the Emery parcel.

[Note 5] Mr. George Severance of Security Fence testified as an expert on behalf of the plaintiff. In his opinion, based on the thickness of the horizontal and vertical pipe which supported the chain link, the fabric of the chain link, the rusty surface of the fence, and the overall appearance of the fence, the fence was installed either immediately prior to World War II or shortly thereafter. Steven B. Gold, owner of Gold Landscaping Service and Boston Tree Company, inspected a tree stump that had grown through the fence. In his opinion, it would have taken five to ten years for the tree to reach the bar of the fence where it stood, and furthermore, the tree itself was at least twenty-five years old at the time that it was cut.

[Note 6] Adverse possession may be obtained by tacking on the period of open, notorious, actual, exclusive, adverse and continuous use of the disputed land by predecessor owners. Wishart v. McKnight, 178 Mass. 356 (1901).